The EPA’s new “compliance first” doctrine is sparking concern from some environmental advocates who expect increases in unlawful air emissions, waste dumping, and toxic releases if companies believe the agency is no longer aggressively pursuing bad actors.

But lawyers say the policy doesn’t necessarily mean less enforcement will take place, depending on how it’s put into practice.

The new approach, outlined in an internal memo dated Dec. 5 and reviewed by Bloomberg Law, directs the Environmental Protection Agency’s enforcement staff to “prioritize ensuring compliance when addressing potential noncompliance” with federal laws, which govern topics such as air and water pollution.

The memo also tells enforcement staff to “begin by asking how compliance can be achieved in the most efficient and quickest means possible,” and urges them to prioritize tools like proactive outreach, technical assistance, and training to regulated industries.

The EPA’s enforcement team has always emphasized compliance, “but at times there may have existed a posture of pursuing enforcement that included findings of violation or orders that exceeded statutory or regulatory requirements,” Craig Pritzlaff, acting head of the agency’s enforcement section, wrote in the memo. Jeffrey Hall, the White House’s pick to become the office’s permanent head, will now step into his role after being confirmed by the Senate Dec. 18.

The memo adds to worries that President Donald Trump’s deregulatory pivot, clawing back environmental controls to reduce burdens on industry, will have long-term effects on issues such as pollution and climate change.

To Stan Meiburg, a former EPA acting deputy administrator, the directive signals to companies that the agency is no longer going to get tough with them.

“No one wants to gratuitously punish people for the sake of punishment,” Meiburg said. “But if the message is, ‘Well, if you break the law, we’ll work with you, and it’s really not that bad,’ you get different behaviors from people.”

The policy doesn’t appear to give much of an incentive to companies with weak track records of compliance to change their ways, said Dave Amerikaner, a partner with Duane Morris LLP.

Brigit Hirsch, an EPA press secretary, said the point of the Dec. 5 memo “is to speed up enforcement and compliance. It takes far too long to go from observing a violation to bringing a facility into compliance with the law.”

The compliance-first approach is also meant to make sure enforcement in general is conducted consistently across the agency, Hirsch said.

For example, she said ordering provisions in enforcement documents “should be specifically tailored to address compliance with violations of the law swiftly.”

By contrast, the Biden administration adopted a “misguided focus on delivering undescribed benefits to address past harm to communities,” Hirsch said. “But the purpose of enforcement is to achieve compliance quickly by stopping noncompliance and remediating any releases as required by law. If subsequent inspections reveal repeat non-compliance, then additional enforcement would be applicable.”

Working With Industry

Some see the memo as merely a reinforcement of longstanding EPA policy.

The EPA’s Office of Enforcement and Compliance Assurance has always emphasized compliance and tried to work with regulated entities, said J. Michael Showalter, a partner at ArentFox Schiff LLP.

Moreover, the Pritzlaff memo “only says compliance first,” Showalter said. “It doesn’t say enforcement never.”

“There’s no ‘give industry a pass’ subtext here,” agreed Madeleine Boyer, an attorney at Beveridge & Diamond PC. “The core mission will continue.”

The memo could also streamline engagement with the EPA and states, “making environmental compliance a less burdensome prospect for those companies who already have strong compliance regimes in place and strong track records,” Amerikaner said.

Pritzlaff’s doctrine might be especially helpful in overstressed communities, like towns or tribal governments that are having problems bringing their water system into compliance but are genuinely trying to do so, said one longtime EPA official who declined to be identified because they’re not authorized to speak publicly.

The memo also gives regulated entities an additional outlet to elevate their arguments from the regional offices up to EPA headquarters, said Stephen P. Smith, a Beveridge & Diamond PC lawyer. That, in turn, could promote greater consistency in enforcement actions nationwide, said Smith, a former associate regional counsel at EPA Region 4.

At the same time, the memo calls for greater deference to states, saying the EPA’s efforts “must be based on a clear federal interest.”

To Meiburg, that language undermines the reality that, while headquarters generally do defer to states, state regulators will sometimes “come to headquarters and say, ‘We really think this is a bad case, but we can’t do anything about it and we need you to.’”

EPA’s Actions

Showalter said the new guidance does hint at reduced enforcement when seen in the context of other moves EPA Administrator Lee Zeldin has taken. For example, the agency has proposed eliminating greenhouse gas reporting requirements, prioritized fossil fuel development, and reduced its workforce, Showalter said.

OECA’s staff has fallen by about 20 to 30%, according to the EPA official. Overall, the agency has trimmed its staff by more than 20% since the start of the year and now has about 12,500 employees, Zeldin recently told reporters.

Scant enforcement data is available from the EPA because the agency is still working on its annual report, which shows how many cases were opened, how many defendants were charged, and other achievements. In previous years the report has been released toward the end of the calendar year, but this year the work has been slowed by the government shutdown, according to an EPA spokesperson.

Anecdotally, however, “it appears that EPA has deemphasized compliance in certain areas of environmental law, particularly where new EPA leadership has been of the opinion that prior administrations overreached,” Amerikaner said.

Meiburg agreed, saying the drop-off in enforcement has been even sharper than in the first Trump administration, when inspections, new cases, and penalties all fell sharply.

“You have case after case where the basic message is, no enforcement,” Meiburg said.